Monday, April 9, 2012

#Dewani Murder : U.K. Human Rights.

The Government of the Republic of South Africa v Shrien Dewani- Read decisionThe extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.

The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after. However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.

In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:1. Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;

2. His mental health and risk of suicide were such that his should not be extradited.

Articles 2 and 3 and prison conditionsMr Dewani argued that his extradition would violate these two rights because of the risks he would face due to contemporary prison conditions in South Africa. The South African government had given undertakings that he would be held in a single cell in various prisons if extradited. The lower Court had heard evidence that there was serious overcrowding in South African prisons, and that this impacted upon the availability of healthcare and treatment for those with mental illnesses. Gang problems within prisons were noted, with non-members in communal cells sometimes being subjected to rape and intimidation. The risk of HIV/AIDS being transmitted in a sexual assault was another factor of relevance. There was evidence that Mr Dewani would be at particular risk of sexual violence, being someone who was “youthful, good looking and [who] lacked “street wisdom”” (paragraph 18).The High Court concluded that there was no basis for differing from the decision of the lower Court. It noted,

There are plainly risks of violence, particularly sexual violence, to a prisoner held in a communal cell in South Africa, though it is not necessary for us to quantify those risks as applicable to the appellant. That is because the Government of South Africa has given clear undertakings that the appellant would be held in a single cell...what happens in a single cell bore no relation to what happened in communal cells…South Africa has now a material track record of respect for democracy, human rights and the rule of law. Those are highly material factors to the court’s acceptance of the undertakings...” (Paragraph 33)

Mr Dewani’s healthThat was not the end of the story however. Considerable evidence had been before the lower Court about Mr Dewani’s mental state after the events giving rise to the extradition request. Experts agreed that he was suffering from two psychiatric conditions, depression and post-traumatic stress disorder (PTSD), both severely. Suicide was a real risk if he were extradited. However, they also agreed that his condition was likely to improve.

Of particular concern was that he was unfit to plead (in general terms this means being unable to take part in the trial, understand the proceedings and give instructions to a legal team – in Mr Dewani’s case the experts considered he could not follow the detail of the evidence and instruct his lawyers).

Of significance was the fact that there was no undertaking from the South African government that Mr Dewani would be treated in a particular psychiatric unit if extradited. A psychiatrist at a specialist medium secure psychiatric care unit in South Africa provided written evidence that he would be very likely to be referred to this hospital if extradited and he would stay until fit to plead or perhaps indefinitely.

The question of Mr Dewani’s mental state raised issues both regarding Articles 2 and 3 and section 91 of the Extradition Act 2003. Section 91(3)(b) requires courts to discharge or adjourn extradition proceedings where the person in question’s mental or physical health is such that “it would be unjust or oppressive to extradite him”.

After the decision of the lower Court, new evidence was produced indicating that Mr Dewani’s condition was slowly improving, but he remained unfit to plead.

In considering section 91, the High Court stressed that every case is fact sensitive, so previous decisions are not greatly useful. It also noted that in the ordinary case, extradition will cause stress and hardship by its very nature. It was “plainly in the interests of justice that [Mr Dewani] be tried in South Africa as soon as he is fit to be tried” (paragraph 78).However, extraditing him would pose “a real and significant risk to his life” (paragraph 80) and there was evidence that it would make it harder to improve his condition so that he became fit to plead. Ultimately, the Court found,

Thus balancing his unfitness to plead, the risk of a deterioration in the appellant’s condition, the increased prospects of a speedier recovery if he remains here and, to a much lesser degree, the risk of suicide and the lack of clear certainty as to what would happen to the appellant if returned in his present condition, we consider that on the evidence before the Senior District Judge it would be unjust and oppressive to order his extradition. (Paragraph 83)

Given this position, the Court did not come to a concluded view on whether Articles 2 and 3 would be breached by extradition, with regard to Mr Dewani’s mental state. At later proceedings, it will remain open to Mr Dewani to argue that there would be a risk of breach, given the facilities available in South Africa and his health at that time.

Consequently, he will not be extradited at the present time, but later developments in this case are likely to continue to be controversial and heavily publicised.